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2396
Again, the court says in this case:
Courts of this kind, whether created by an act of Congress or a Territorial 
statute, are not, in strictness, courts of the United States; or in other words, 
the jurisdiction with which they are invested is not a part of the judicial power 
defined by the third article of the Constitution, but is conferred by Congress 
in the execution of the general powers which the legislative department pos- 
sesses to make all the needful rules and regulations respecting the public 
territory and other public property.
Mr. HOAR.   You can change that by act of Congress. 
Mr. SPOONER.   Of course, you can change that by act of 
Congress.   Having fixed the tenure of the Territorial judge dur- 
ing good behavior, you may change it. 
The trouble with the Senator from Ohio is that while very posi- 
tive in his assertions he is blind while reading one clause of the 
Constitution to the judicial clause of the Constitution.   I have 
admitted, and I admit now, that we have the power, in creating 
the Territorial court, to confer upon it such jurisdiction as we 
choose - admiralty jurisdiction and all; we have the power to 
make the tenure what we please.   We have no such power as to 
the constitutional judge.   We have the power to make the Terri- 
torial judge removable by the President.   We have no such power 
as to the judge of a constitutional court. 
We may confer upon the Territorial court admiralty jurisdic- 
tion.   That is a subject to which the judicial power extends in 
section 2 of Article III of the Constitution of the United States; but 
Chief Justice Marshall says in this case that that provision of the 
Constitution did not deal with the Territories; did not deal with 
the power of Congress to confer maritime jurisdiction or admi- 
ralty jurisdiction upon Territorial judges, but that it dealt with 
this proposition only: That no court within a State should have 
the right to exercise admiralty jurisdiction of the United States 
except the Federal court, the constitutional court. 
It has been said, and I myself so thought when I first considered 
it, that this decision of the Supreme Court in Insurance Company 
vs. Canter, holding that Congress could extend to a Territorial 
court admiralty jurisdiction, militates against the proposition 
which I have been forced, as a matter of investigation and reason, 
to maintain here, but it does not.   Chief Justice Marshall says in 
this case:
A case in admiralty does not, in fact, arise under the Constitution or laws 
of the United States.   These cases are as old as navigation itself; and the 
law, admiralty and maritime, as it has existed for ages, is applied by our 
courts to the cases as they arise.   It is not, then, to the eighth section of the 
Territorial law that we are to look for the grant of admiralty and maritime 
jurisdiction to the Territorial courts.   Consequently, if that jurisdiction is 
exclusive, it is not made so by the reference to the district court of Kentucky.
To which the Senator referred a few moments ago.   Now, the 
court said:
Although admiralty jurisdiction can be exercised in the States in those courts 
only which are established in pursuance of the third article of the Constitution, 
the same limitation does not extend to the Territories.
There is a specific declaration that the admiralty jurisdiction 
mentioned in the second section of Article III of the Constitution 
as one of the points of Federal jurisdiction was not intended to 
apply or to refer to the courts in the Territories, but is intended 
only to refer to the Federal courts or the constitutional courts 
erected by Congress within the boundaries of the States. 
The Supreme Court, in the McAllister case, say that this power 
was "intended to be exercised in correlation with the presence and 
jurisdiction of the several State courts and governments." 
We can give the admiralty jurisdiction to the Territorial court, 
because it is an ancient jurisdiction, and because Congress, as the 
court many times has said, has plenary power, under that clause 
of the Constitution which gives it the power to make rules and 
regulations respecting the Territories, to confer that jurisdiction 
upon a Territorial court.   I care not what yon call it.   You may 
call it a district court; you may call it a court of the United 
States; you may by statute place a Federal side on the Territorial 
court and call that a court of the United States, as contradistin- 
guished from a Territorial court.   The Supreme Court of the 
United States within the last year has recognized that distinction, 
based upon the statutes of the United States.   But my proposition 
is that where you create a district court, as is attempted to be done 
by this bill, the section remaining silent as to the tenure of office, 
that tenure will not be for life, as the Constitution makes the 
tenure of the constitutional judge, but will fall under the general 
provision of the Revised Statutes fixing the tenure of four years 
for all Territorial judges. 
Mr. CHILTON.   Mr. President -- 
Mr. SPOONER.   In one moment. 
Take the Orleans case, referred to by the Senator from Ohio. 
The court there was called a district court in the Territory; you 
may call this a district court, if you choose.   The judge there was 
called a district judge; you may call this judge a district judge. 
But, after all, it is not the shadow, it is the substance, we are 
after; and calling a court a district court and making the term of 
the judge during good behavior does not make it a constitutional

court or a court created under section 1 of Article III of the Consti- 
tution.   When Louisiana was admitted into the Union, that court 
and that judge were superseded.   What better evidence could 
there be that that was a statutory or Territorial court as contra- 
distinguished from a constitutional tribunal?   The constitutional 
judge is not superseded by any act of Congress and could not be 
superseded by any act of Congress. 
Mr. CHILTON.   You may abolish the office. 
Mr. SPOONER.   You may, as I was about to say, abolish the 
office, but you can not abolish the tenure nor limit the term.   The 
distinction between the two courts, perhaps more theoretical 
in one sense than practical, is, to my mind, as clear as any propo- 
sition in law. 
I am prepared to concede that there is very great force in the 
argument made by the Senator from Alabama [Mr. MORGAN] 
that the court which is to deal with admiralty questions over in 
the islands of Hawaii should be a more permanent court, so far 
as the tenure of the judge is concerned, than the ordinary Terri- 
torial court, because of its isolation, because they are islands of 
the sea, and because, in the very nature of things, the admiralty 
jurisdiction in all its phases will be more often invoked than per- 
haps in some of the settled States of this Union. 
If that be true, Mr. President, we have the right to fix the term 
of this judge for longer than four years, if that is thought wise; 
and it may be wise for this reason, that possibly you could not, if 
the term were only four years, induce a judge of adequate experi- 
ence and ability to abandon his practice and move away from our 
own people to take judicial office over there. 
But that does not reach at all the question I am discussing. 
The very fact that we may make it a ten-year tenure, that we may 
make it fifteen years, or whatever we choose, shows beyond any 
possible question that that judge does riot fall within the class of 
constitutional judges, with whose term or tenure we have nothing 
whatever to do here and over whose term we have no power or 
jurisdiction whatever. 
Mr. STEWART.   Will the Senator permit me to make a sug- 
gestion? 
Mr. SPOONER.   If the Senator will pardon me, I shall do so 
in one moment. 
Really, the whole point of my proposition was this, to call to 
the attention of the Senator from Alabama this suggestion: If it 
be important in the interests of that people - and we all want to 
serve the interests of that people, however we may have felt about 
their annexation - if it be important to give to the judges of that 
court a longer tenure than four years, it should be provided in the 
section, and the section should not be left as it is - silent upon the 
question of tenure, on the theory that we are creating a consti- 
tutional court there. 
Mr. MORGAN.   The Senator appealed to me, and I suppose, he 
will submit to an interruption. 
Mr. SPOONER.   Always. 
Mr. MORGAN.   It is not merely important for the interests of 
those people that we should have a Federal court there -- 
Mr. NELSON.   Mr. President, I can not agree with the views 
expressed by the Senator from Wisconsin  [Mr. SPOONER],    I 
think -- 
Mr. SPOONER.   I yielded to the Senator from Alabama [Mr. 
MORGAN].   When he has concluded I shall then yield to the Sen- 
ator from Minnesota [Mr. NELSON]. 
Mr. NELSON.   I wish to reply to the Senator from -- 
Mr. STEWART.   I hope the Senator will allow me to make a 
remark before he does so. 
The PRESIDENT pro tempore.   The Chair has recognized the 
Senator from Minnesota [Mr. NELSON], 
Mr. NELSON.   Mr. President, I wish to reply briefly to the 
Senator from Wisconsin. 
Mr. STEWART.   Will the Senator yield to me for one minute 
before he replies to him, and then he will have something more to 
reply to? 
The PRESIDENT pro tempore.   Does the Senator from Min- 
nesota yield to the Senator from Nevada? 
Mr. NELSON.   Yes. 
Mr. STEWART.   Mr. President, from the foundation of the 
Government the practice has been to remove judges of the Terri- 
torial courts by the President on .the ground that they were not 
provided for by the Constitution.  That has never been questioned 
once in any judicial decision that I know of.   Judge McLean con- 
tended that they were constitutional courts, and that the Presi- 
dent, therefore, did not possess that power.   You will find one of 
his dissenting opinions to that effect.   But the court held that it 
was not in the power of Congress to create judges of the Terri- 
tories whom the President could not remove; that they were not 
constitutional judges within the purview of the Constitution; 
that they were simply legislative judges, created by the legisla- 
tures of the Territories, and subject to removal by the President.

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